Opinion
No. FA-01-0085536S
November 15, 2005
CORRECTED MEMORANDUM RE DEFENDANT'S MOTION TO MODIFY — #150 PLAINTIFF'S MOTION FOR CONTEMPT — #151
I. BASIC HISTORICAL FACTS
This proceeding arises out of the 2002 dissolution of a ten-year marriage that produced two daughters, Jenna, now twelve years of age and Deanna who is currently thirteen years of age, but is a child with very special needs. Specifically, the marriage of the parties was dissolved by the court (Di Pentima, J.) on November 8, 2002, at which time the court, during the uncontested proceeding, approved a separation agreement entered into by the parties on said date. A judgment file was subsequently prepared and signed by counsel and the court.
The dissolution judgment provided, inter alia, for joint legal custody of the two children, whose physical custody was vested in the plaintiff, subject to liberal visitation to the defendant, which was to include summer and holiday time as well as overnight visits. The defendant was to pay $250 per week in child support that the parties agreed was pursuant to the Connecticut Child Support Guidelines (within 15% of the presumed amount of $256 per Defendant's Exhibit #3). The defendant was to pay $300 per week as periodic alimony, nonmodifiable as to the thirteen-year term and was to pay $464 per month on a loan that financed the purchase of a van equipped to meet the special needs of the eldest child. The van was purchased by the parties during the pendency of the dissolution. The separation agreement (Paragraph #12) provided that the van payments would be deemed additional alimony.
The dissolution judgment further provided that, although the plaintiff would receive sole title to the marital home located at 183 Spencer Hill Road, Winsted, the parties would cooperate so that the defendant could seek local approval for an additional building lot on the real property, via a subdivision, that would be solely owned by the defendant. The real property that was the situs of the marital home was, at the time of the dissolution, in the defendant's name. He valued the parcel at $230,000. CT Page 14064-lz The defendant was allotted seven months to obtain the necessary approvals. The defendant was to retain the net proceeds from the sale of 38-40 Dewey Street, Torrington, which was a two-family income-producing residence, that was sold by the defendant during the pendency of the dissolution. The defendant also retained 118-124 Pearl Street, Torrington, which consisted of three multifamily dwellings that generated a monthly gross rental of $3,200. The defendant disclosed in his financial affidavit, a mortgage balance of $40,000 on said properties and valued the properties on Pearl Street at $150,000.
The defendant's financial affidavit dated November 8, 2002 valued the net proceeds from said sale at $5,718. See Plaintiff's Exhibit #1.
At the time of the dissolution, the defendant reported gross weekly earnings of $1,058 from his self employment as a master electrician. Total net earnings, which included the net rental receipts, were $903. The plaintiff reported no earnings, as she was a full-time parent to her two daughters, especially Deanna. With a disclosed net income of $903, the defendant agreed to pay to the plaintiff, inclusive of child support, alimony and the van, a total weekly sum of $658, a sum equal to seventy-three per cent of his net income!
II. POSTDISSOLUTION PROCEEDINGS
During the year following the dissolution of the parties' marriage, there were several proceedings resulting from applications for contempt, filed by the plaintiff including one such proceeding on May 27, 2003, during which Judge Pickard, after approving an agreement to pay an outstanding arrearage, cautioned the defendant to pay promptly and to comply with all financial orders. Meanwhile, the defendant was pursuing, although, according to the plaintiff, not too diligently, the subdivision approvals. According to the defendant, the plaintiff was attempting to frustrate his efforts to obtain local approvals by refusing access to the property for necessary engineering and site work.
All of the postdissolution issues came to a head on November 14, 2003, when Judge Brunetti conducted a hearing on two motions for contempt (visitation and subdivision) filed by the defendant, in addition to his motion to modify alimony, child support, and the van payments, and two motions for contempt (alimony and child support, failure to deed the Spencer Street property to the plaintiff) filed by the plaintiff. Judge Brunetti's Memorandum Of Decision was filed on December 10, 2003, (#134). The court refused to reduce the defendant's child support, alimony and van obligations, finding that the defendant's evidence on the issue of substantial change in financial circumstances was "severely lacking," as he produced no documentation to substantiate his claimed reduction in income. It is noteworthy that, at the time of the hearing, the defendant's financial affidavit (Plaintiff's Exhibit #3) disclosed CT Page 14064-la gross weekly earnings of $715.76 and a net weekly earnings of $400.76. No rental income was disclosed, however, the defendant did report net proceeds of $187,599.91 from the sale of all of the Pearl Street properties, and his ownership of two lots in Winsted that he valued at $25,000 and a lot in Torrington worth $58,816.
The defendant was found in contempt, despite the fact that he had paid the then outstanding arrears of $3,450 on the day of the hearing. The defendant was ordered to pay to the plaintiff attorneys fees of $350. The court found that the plaintiff was not willfully denying visitation to the defendant, noting the plaintiff's testimony that the defendant had not sought visitation until shortly before the motions were filed. Referring to the property issue as, "the most hotly contested motion," Judge Brunetti denied the motion for contempt, filed by each of the parties relative to this issue, however, the defendant was given an extension to May 31, 2004, to complete the subdivision approval process, at which time he was ordered to deed the property to the plaintiff, i.e., the portion upon which the house is located, if approval was obtained, or the entire parcel, in the event that the defendant failed to obtain subdivision approval. The plaintiff was ordered not to interfere with the approval process. The defendant's motion to reargue was denied.
The second year following the dissolution was characterized by additional motions relative to the subdivision and further findings and agreements relative to child support and alimony arrearages. A parenting plan was orchestrated by the family relations office, which was agreed to by the parties and ordered by the court on August 16, 2004. On November 15, 2004, the parties stipulated to an outstanding arrearage of $3,087.46, in addition to attorneys fees of $250 and costs of $13.65, which the defendant was ordered to pay forthwith. On March 1, 2005, the defendant retained new counsel, who immediately filed another motion to modify the periodic payments.
III. THE PENDING MOTIONS
On March 1, 2005, the defendant filed his current motion (#150), whereby he seeks a reduction in his child support and alimony payments. Although the motion mentions the order relating to the van payment, the motion contains the following requests for relief: "Wherefore, the defendant respectfully requests that the judgment be modified in respect to orders for payment of alimony and support." Emphasis added. Nevertheless, at the hearing, and over the objection of the plaintiff, the defendant asked to be relieved of the van obligation.
In his motion, the defendant asserts that the amount of alimony and CT Page 14064-lb child support ordered by the dissolution court requires him to pay, "an unreasonable portion of his income." The defendant claims that his income is substantially less than that disclosed at the time of the dissolution, due to a material change in his circumstances, and that the order of child support substantially deviates from the guidelines.
On March 2, 2005, the plaintiff filed a motion for contempt (#151) based on the defendant's alleged failure to pay the court-ordered alimony and child support.
Subsequent to March 2, 2005, and prior to the court's hearing on the pending motions, the plaintiff filed six supplemental contempt motions, each seeking a contempt finding on the alimony and child support orders, and each alleging a higher arrearage than that alleged in the previous motion. At the commencement of the hearing, this court requested the withdrawal of the supplemental contempt motions as unnecessarily duplicative, ruling that the contempt issue, relative to the periodic orders, was properly before the court via #151 and that any arrearage that might be found, would be that due at the time of the hearing. In this court's view, therefore, the subsequent contempt motions were superfluous.
This court conducted the hearing on both motions over a thee-day period, September 21-23, 2005, during which the court heard from four witnesses, including each of the parties, the defendant's former employer, and the defendant's father. Twenty-eight exhibits were submitted, twelve by the plaintiff and sixteen by the defendant. The court, after reviewing the court file, examining all of the exhibits, considering the testimony of all of the witnesses, assessing the credibility of each of the witnesses, and considering the arguments advanced and citations referenced by counsel, makes the following findings.
IV. RELEVANT FACTS A. As To The Children
As noted, the parties have two children, issue of the marriage. Twelve-year-old Jenna is in good health and has experienced a normal childhood development. Thirteen-year-old Deanna, however suffers from cerebral palsy, which has adversely affected her emotional, cognitive and physical development. Although she is deemed moderately disabled, she is confined most of the time to a wheelchair and requires assistance for standing, limited walking and for the bathroom. She is a quadriplegic and has been confined to a wheelchair since she was three years of age. Although, with her sister, she attends a middle school six hours a day, she requires a full-time aide and special education classes. She is in the tenth grade, but reads at a third-grade level. Two aides must be available to assist her in visiting the bathroom. She receives physical therapy at the school once a week for a forty-five-minute session, purposed to improve wheelchair mobility and range of motion and to strengthen her muscles. Defendant's Exhibit # 18. She has undergone two hip surgeries, yet, according to her orthopedic surgeon, "really does not walk in any functional way." Defendant's Exhibit #17. Surgical hamstring strengthening is under consideration. She suffers from chronic constipation. Currently, she takes no medication. She is routinely seen by a team of physicians. CT Page 14064-lc
In order to put into place the programs and to obtain the accommodations and aides that Deanna requires, the plaintiff has assumed the role of a fierce advocate for her child's needs and entitlements and is, therefore, a constant visitor to Deanna's school. When Deanna returns to the home after school is done, her mother must assume the roles performed by the school aides. According to the plaintiff, Deanna awakens two to four times each night, thus affording limited sleep time to the mother; the plaintiff testified that she is "exhausted" in tending to Deanna's special needs each and every day. The plaintiff conceded, however, that she has not sought respite care or any services that might be available from the community for Deanna; she has not applied for any monetary benefits that might be available through the social security administration.
B. As To The Plaintiff
The plaintiff testified that she has no intention of seeking any employment, including any part-time employment, due to her parental obligation to attend to Deanna's special needs. The plaintiff has worked part-time in the past in clerical positions, including being responsible for the payroll for a company that employed two hundred people during the years 1990 to 1994, which was apparently her last gainful employment. The plaintiff does possess both computer and communication skills, according to her resume. Defendant's Exhibit #10. There was no testimony indicative of any health-related impediment that would preclude the plaintiff from working either part-time or full-time. There was no testimony as to the plaintiff's age (the court will not hazard a guess) and no exhibit made reference thereto, however, the plaintiff has many years of work expectancy.
The plaintiff resides in what was the marital home in Winsted, with her two children and her mother, who is eighty-four years of age. Her mother moved from Florida in June 2003 and, since taking up residence with her daughter and her two grandchildren, she has contributed over $30,000 toward the household expenses, including payments on the van loan. See Plaintiff's Exhibit # 5 and Defendant's Exhibit #15. Although the maternal grandmother drives and is able to stay with Deanna to allow mother to shop or to run short errands, the maternal grandmother is unable to physically handle the child.
While married to the defendant, the plaintiff kept the accounts for his multiple rental properties. Thus, at the time of the dissolution, she was well aware of the rental income received and expenses incurred relative to those income-producing marital assets. The rental received from 38-40 CT Page 14064-ld Dewey St., prior to the sale some months before the dissolution, was $1,520 per month. From the Pearl Street properties the rental generated was $3,225 per month, a total gross monthly rental of $4,745. Monthly expenses for those properties, including the mortgage, real estate taxes, insurance premiums, water and sewer totaled $2,684.86, leaving a monthly net income therefrom of $2,684.86, or $624.38 per week. See Plaintiff's Exhibit #11. That income was available to tend to the needs of the family before the defendant earned any income from his self-employment as a master electrician.
During the marriage, the plaintiff was also well aware of the electrical contracting jobs received by the defendant. She did some bookkeeping for the business and had check-signing authority. She testified that in 2001, the defendant "pulled" $114,000 in permits for residential housing construction and that in addition to his main source of business, Heritage Builders, he received jobs from other sources, including several realtors. He received $4000 for each house that he wired for Heritage and, in 2001-2002, charged $50 per hour for his services to other customers. Despite the relatively low income reported in the joint tax returns filed by the parties, a subject hereinafter addressed, the parties were able to accumulate substantial assets during the marriage and to build substantial equity in the real properties. At the time of the dissolution, the marital home was worth $230,000 with no mortgage thereon, while the other properties had an equitable value, according to the defendant of $117,000. Plaintiff's Exhibit #1. At the time of the dissolution, the source of the familial income was the income-producing properties, coupled with the defendant's business profits. The evidence shows that the actual income generated from both of those sources was more than sufficient to justify the periodic alimony, child support and van payment orders agreed to by the defendant and approved by the dissolution court.
The defendant testified, however that he netted $187,000 from the sale of the Pearl Street properties, which he sold less than a year after the dissolution.
C. As To The Defendant
The defendant is fifty years of age. There was no testimony as to any adverse health conditions that would impact on his ability to work. He is an electrician by trade, having earned his journeyman's license in 1985. He became a master in 1987 by earning his contractor's license. His father, who is a retired carpenter and general contractor, assisted the defendant in starting and maintaining his own electrical contracting business by referring customers. The defendant's experience and expertise is mostly in the residential field, however he has done some commercial installations. His father retired in the late nineties. From 2000-2003, the defendant's main source of business was Heritage Builders which, a year after the dissolution, either ceased doing business or, at least, CT Page 14064-le ceased referring electrical work to the defendant. The defendant testified that in 2003 he expected to wire thirty houses with Heritage. Thus with the loss of that major source of business, his income was substantially reduced; he was, therefore, compelled to seek other forms of employment.
During the summer of 2004, the plaintiff called his attention to a job fair, which the defendant attended. As a result, he was hired as a journeyman electrician by a company that provided licensed electricians to its customers in the building trades. Although his employer received $35-$40 an hour for the defendant's services, the defendant earned $20 an hour and worked a forty-hour week. In December 2004, the defendant left that employment for his current job at New Britain Electric. He began work at this company in January 2005, and currently earns a wage of $20 an hour for a forty-hour week. Thus, his total earned income is a weekly gross of $800. His net weekly earnings, pursuant to the current guidelines, amount to $610. Although health insurance is available to him, presumably at no cost, via his employment, the defendant testified that his daughters are not covered as the cost to him would be $791 a month, an amount that he claims he cannot afford. The daughters are currently covered by Connecticut's HUSKY plan. The defendant admitted that he canceled the $100,000 life insurance policy that, at the dissolution, he agreed and was ordered to maintain as security for his child support and alimony obligation. He claimed that at the time of the hearing on the pending motions, he spent $100 per week on gasoline, mostly consumed while driving to and from work.
The defendant currently resides with his girlfriend, a former aide to Deanna, in her residence in Torrington, despite having constructed a single-family dwelling on New Harwinton Road in Torrington, which, according to the defendant, was built to accommodate his daughters and is handicapped assessable to Deanna. He has also purchased his own van in order to transport Deanna during visits. He has not, however, seen his children, issue of this marriage, since December 2004! His newly constructed single-family dwelling is currently occupied by his twenty-two-year-old son from another relationship, and his son's two male friends, who pay no rent to the defendant; the defendant does plan to discuss with his son a contribution toward the fuel bill. While residing with his girlfriend, the defendant has paid no rent, although he does buy "some food" and helps with the electric bill "a little bit."
In his financial affidavit dated September 21, 2005, the defendant claims that he incurs weekly expenses of $1,355.63. Defendant's Exhibit #12. Among the alleged weekly expenses is a mortgage payment of $125, that is due to his father, who financed the construction of the new CT Page 14064-lf residence, a debt that the defendant does not pay. Real estate taxes of $64.80 per week are claimed, however, there is a balance due to the municipality of $4,500. The defendant claims a weekly food expense of $120, yet his girlfriend, apparently, buys most of the food. Although he claims to pay the full $550 alimony and support order and $108 per week for the van, he admitted that, since May 2005, he pays the plaintiff the sum of $200 per week only. He reports liabilities totaling in excess of $64,000, that include $23,900 to his father on a personal loan, the $9,700 balance due on the van possessed by the plaintiff and $26,000 in credit card debt, all of which command a weekly payment of $505, which the defendant does not pay.
The defendant testified that he built the New Harwinton Road dwelling in 2004, after he netted $187,600 from the sale of the Pearl Street properties. He testified that he borrowed $45,000 from his father in order to construct the dwelling. He stated that he paid $58,000 for the building lot and $40,000 for the construction of the dwelling, in addition to the $45,000 lent by his father, a total investment of $143,000. His financial affidavit dated September 21, 2005, reflects a value of $135,000 for said real property. His father, however testified that he paid, through his attorney's escrow account (arranged by the father), $90,000 for the construction of his son's dwelling, a fact, that is confirmed by a mortgage note and deed executed by the defendant on July 19, 2004, that secured the real property and bears interest at twelve per cent per annum. See Plaintiff's Exhibit #4.
Although the defendant testified that he never paid his father any sums on said note and doesn't know what his father is owed, the exhibit also contains the escrow attorney's record of the receipt of monthly payments on the mortgage note from August through December 2004, totaling $2,698.20 at $539.64 per month. The note bears a maturity date of July 19, 2005. The note is apparently in default and no payments have been recorded since December 2004.
Simple math reveals that, if the defendant applied his $187,600 and his father's $90,000 to the purchase of the lot and the construction of the dwelling and paid $58,000 for the lot and put $85,000 into the construction of dwelling, as he claims, he would have reaped a surplus of nearly $135,000. The defendant claims that any surplus was exhausted by capital gains taxes, the court-ordered periodic payments, and his purchase of his van. See Defendant's Exhibit #4. The plaintiff, however, correctly points out that the defendant's accounting fails to credit the father's $90,000 contribution and fails to accurately apply the defendant's earned income as a resource for the periodic payments.
The defendant testified that he no longer desires to work for himself and that his job with New Britain Electric might be in jeopardy if he moonlighted, although New Britain is some thirty miles distant from Torrington. He claims he cannot work weekends, as he would have to secure permits during the week, while working for his employer. He claimed that, given the high level of competition presented by many small electrical contractors in Litchfield County and his poor credit rating, he could not be successful if he re-started his own business, either on a part-time or CT Page 14064-lg full-time basis. The plaintiff testified that in October 2004, the defendant turned off his cell phone, which was the means by which his customers contacted him for jobs. The plaintiff added that in December 2002, one month after the dissolution, the defendant informed her that she was a "greedy ( expletive deleted)," and that he would, thereafter, "work less." In a subsequent note to the plaintiff, the defendant suggested to her that she should stop wasting his money, spend her mother's money and get a job. Plaintiff's Exhibit #6 (which is the other side of Defendant's Exhibit #4).
The defendant was in arrears on the periodic orders in the amount of $11,566.00 as of September 22, 2005. This was testified to by the plaintiff, who kept an accurate record of payments due and payments received; her figures were not challenged by the defendant. An additional payment of $550 (alimony and support) was due the next day, which was the last day of the hearing. It is noteworthy that, while the defendant admitted, on cross-examination, to having a $600 check in his wallet, no portion thereof was paid to the plaintiff by the time the hearing concluded.
V. THE CLAIMS OF THE PARTIES
The defendant claims that he is unable to make the alimony, child support and van payments in the amounts ordered at the dissolution, due to the substantial change in his financial circumstances, that was precipitated by the loss of his main source of business, i.e., Heritage Builders. The resultant reduction in his income compelled him to abandon his electrical contracting proprietorship and to seek out an employer. This he has done, but he now earns $800 gross per week as a result. Due to employer loyalty, stiff competition, and his poor credit rating, he is unable to procure additional income by performing electrical work evenings or weekends. He claims that the net proceeds of the sale of the Pearl Street properties has been exhausted, his debt has substantially increased and he is unable to continue paying the full dissolution orders. The defendant suggests that the plaintiff should seek out some employment, and that she should apply for Social Security benefits for Deanna. He asks the court to reduce the child support as the current order deviates more than fifteen per cent from the presumptive guideline amount. He also seeks a reduction in the alimony order as well as relief from the van payment.
The plaintiff claims that the defendant should be held in willful contempt of the periodic orders and seeks an award of substantial attorney fees. The plaintiff's attorney wants the court to order the defendant incarcerated, asserting that incarceration is the only message CT Page 14064-lh that will finally convince the defendant to promptly and consistently pay the full amount of the court orders. The plaintiff claims that the defendant could well afford the periodic orders at the time of the dissolution and that his claimed inability to pay the full amount of the orders results from the bitterness over the loss of his planned subdivided lot; his ill-motivated and ill-advised sale of the Pearl Street income-producing properties and construction of his new dwelling; and his abandonment of his business, resulting in current earnings well below his earning capacity. Plaintiff further urges the court not to consider the defendant's motion, as it is an attempt to have a rehearing of those issues decided by Judge Brunetti. The plaintiff points out that, per the financial affidavits, the defendant is earning substantially more than that income disclosed at the earlier hearing. The plaintiff argues that the court is precluded from any modification or termination of the van obligation as that order was an integral part of a property settlement. The plaintiff claims that the defendant has secreted significant sums realized from the sale of the Pearl Street properties, and, therefore, has the ability to pay the arrears in full, in addition to attorneys fees. Finally, the plaintiff points out, the minimum contribution made by the defendant toward his own living expenses and his failure to demand rent from those who occupy the New Harwinton Road dwelling, including his adult son, while ignoring the special needs of his handicapped daughter.
VI. MODIFICATION A. In General
General Statutes Sec. 46b-86 governs the modification of both periodic child support and alimony orders.
The statute provides, in pertinent part:
"Unless and to the extent that the decree precludes modification . . . any final order for the periodic payment of permanent alimony or support may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to section 46b-215a, unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate. There shall be a rebuttable presumption that any deviation of less than fifteen per cent from the child support guidelines is not substantial and any deviation of fifteen per cent or more from the guidelines is substantial . . . After the date of judgment, modification of any child support order issued before or after July 1, 1990, may be made upon a showing of such substantial change of circumstances, whether or not such change of circumstances was contemplated at the time of dissolution . . ."
The substantial change in circumstances provision establishes the authority of the trial court to modify existing child support orders to respond to changed economic conditions. Specifically, it allows the court to modify a support order when the financial circumstances of the individual parties have changed, regardless of their prior contemplation of such changes. Id. The party seeking modification of a support order bears the burden of clearly and definitely [showing] individual facts and circumstances which have substantially changed.
Gaffey; v. Gaffey, 91 Conn.App. 801, 806 (2005). Internal citations and quotations omitted. CT Page 14064-li
When financial grounds are alleged as a basis for a modification, the court is obligated to first consider whether there has been a substantial change in circumstances since the last court order, such as to justify a modification and, second, the court must examine those circumstances in its consideration of what modification ought to be ordered. Rutkin, Family Law and Practice with Forms, Connecticut Practice Book Series, Section 39.16, at page 386. A court, however, is not obligated to consider a reduction in child support or alimony if it finds that an adverse change in financial circumstances was the fault of the party seeking the modification, such as the failure of the movant to fully exploit his or her earning capacity. Id., at page 387. Thus, "a downward modification may be denied where the ability to pay is viewed to be caused through the payor's own fault." Id. at page 388. Sanchione v. Sanchione, 173 Conn. 397, 407 (1997). When a motion seeks to modify a periodic alimony order the court must consider the criteria provided in General Statutes Sec. 46b-82(a).
The statute provides as follows:
At the time of entering the decree, the Superior Court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b-81. The order may direct that security be given therefor on such terms as the court may deem desirable, including an order pursuant to subsection (b) of this section or an order to either party to contract with a third party for periodic payments or payments contingent on a life to the CT Page 14064-lt other party. The court may order that a party obtain life insurance as such security unless such party proves, by a preponderance of the evidence, that such insurance is not available to such party, such party is unable to pay the cost of such insurance or such party is uninsurable. In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent's securing employment.
In general the same sorts of [criteria] are relevant in deciding whether the decree may be modified as are relevant in making the initial award of alimony. They have chiefly to do with the needs and financial resources of the parties. More specifically, these criteria require the court to consider the needs and the financial resources of the parties and their children . . .
Emphasis added. Citations and internal quotations omitted. Borkowski v. Borkowski, 228 Conn. 729, 736 (1994).
The original decree or any subsequent order is an adjudication by the trial court as to what is right and proper at the time it is entered. To obtain a modification, the moving party must demonstrate that circumstances have changed since the last court order such that it would be unjust or inequitable to hold either party to it. Because the establishment of changed circumstances is a condition precedent to a party's relief, it is pertinent for the trial court to inquire as to what, if any, new circumstance warrants a modification of the existing order.
Id., at pages 737-38.
B. The Benchmark Order CT Page 14064-lj
The parties are in disagreement as to which court order should serve as the benchmark or basis of comparison, insofar as a change in the defendant's financial circumstances is concerned. The plaintiff argues that Judge Brunetti's memorandum should be the benchmark order and, if so, the court should deny the defendant's motion, since his current income greatly exceeds that reported to Judge Brunetti in November 2003. The defendant's financial affidavit dated November 14, 2003, discloses gross weekly income of $715.76, and net weekly income of $400.76. Plaintiff's Exhibit #3. His financial affidavit dated September 21, 2005, however, discloses gross weekly income of $800, and a net weekly income of $596.74, nearly $200 more than that claimed in 2003. Defendant's Exhibit #12. Thus, the plaintiff argues that if Judge Brunetti's findings are the benchmark, the defendant has experienced nearly a fifty percent increase in his income since the denial of his previous motion, which, according to the plaintiff, is an obvious basis for the denial of his current motion.
The defendant points out that, given the fact that Judge Brunetti denied his motion in November 2003, the last alimony and child support orders entered by a court were the dissolution orders. There has been no modification of those orders or the van payment order since they were entered. Thus, the defendant argues that the benchmark basis of comparison, is the income reported by the defendant at the time of the dissolution. The defendant's financial affidavit dated November 8, 2002, disclosed gross weekly income of $1,058 and net weekly income of $903, which was $300 more per week than the defendant's current net income. Thus, the defendant argues, the substantial reduction in his income should entitle him to a reduction in his periodic orders. Furthermore, the defendant asserts that the basis of Judge Brunetti's denial was not a change from owning his own business to becoming an employee, as is the basis for the current motion, but the defendant's failure to provide the documentation to substantiate the reduction in his income that he alleged in 2003, while he was self-employed.
Again, the Borkowski case, supra, is instructive, however, on this issue, the language is somewhat confusing. On the one hand, the Supreme Court opines that evidence presented by the parties at a modification hearing, should go back only to the "latest petition for modification." Id., at page 736. The court later states that the change in circumstances should relate back to the "last order." Id. at page 737. The court observed that: "The power of the trial court to modify the existing order does not, however, include the power to retry issues already decided." Id. At page 738. The court explained further, that: CT Page 14064-lk
Applicable to dissolution actions, as well as to other kinds of litigation, is the principle that an adjudication by a court having jurisdiction of the subject matter and the parties is final and conclusive not only as to matters actually determined, but as to matters which the parties might have litigated as incident thereto and coming within the legitimate purview of the subject matter of the action. Id. This policy of avoiding duplicitous litigation is particularly important in the context of family law where courts should" welcome the opportunity to ease the burden of post-divorce litigation over enforcement or modification of alimony claims"; S. Reynolds, "The Relationship of Property Division and Alimony: The Division of Property to Address Need," 56 Fordham L. Rev. 827, 834 (1988); and attempt to foster amicable dissolution and certainty. A court, having performed its function of ruling upon a controversy, cannot be taken over by the litigants for the continued readjudication and reconsideration of their affairs. To allow otherwise would waste time and leave an undesirable uncertainty in the economic affairs of the parties.
Id. at pages 738-39.
All of the above excerpts from Borkowski, would seem to favor the plaintiff's position, but for the court's conclusion:
Applying these principles to the facts of this case, we conclude that, by considering evidence of events and conditions antecedent to the last modification, the trial court applied an incorrect legal standard in determining whether there had been a substantial change of circumstances warranting a modification. Accordingly, the trial court's modification of the dissolution decree constituted an abuse of discretion.
Emphasis added. Id. at page 740
In reversing the trial court, because that court incorrectly considered evidence prior to the last modification, the Supreme Court appears to view, as the benchmark for comparison, the last modification of the dissolution order, rather than the last court action that resulted in no CT Page 14064-ll modification. That would seem to favor the defendant's position.
Under the circumstances of this case, however, this court will follow the broad interpretation adopted by the appellate court, which after citing Borkowski, offered the following:
Section 46b-86 reflects the legislative judgment that continuing . . . payments should be based on current conditions . . . Thus, [t]o avoid re-litigation of matters already settled, courts in modification proceedings allow the parties only to present evidence going back to the latest petition for modification . . . [D]ecrees may only be modified upon proof that relevant circumstances have changed since the original decree was granted. (Citations omitted; internal quotation marks omitted.) Borkowski v. Borkowski, supra, 228 Conn. 735-36. This limitation, however, does not prevent a trial court from considering relevant evidence of a party's circumstances prior to and subsequent to the last applicable court order if needed for purposes of a reasonable comparison. It is within the trial court's discretion to ascertain what financial information is relevant.
Emphasis added. Denley v. Denley, 38 Conn.App. 349, 352 (1995).
C. Child Support
As noted, with regard to a modification of an alimony and child support order, Sec. 46b-86 permits the court to modify either order upon a showing of a substantial change in circumstances. In considering a modification of alimony, the court, as also noted, must consider the factors provided in Sec. 46b-82(a). In its determination as to whether to modify a child support order, however, there is a presumption that if the current order exceeds the amount recommended by the child support guidelines by more than fifteen per cent, such presents a substantial change, however, the presumption is a rebuttable one. Moreover, a court is permitted to deviate from the recommended or presumptive guideline child support order, by applying one or more of the deviation criteria set forth in Sec. 46b-215a-3(b) of the Regulations of Connecticut State Agencies, as provided in the current edition, effective August 1, 2005, of the Child Support and Arrearage Guidelines.
On this issue, the parties have submitted to the court several guideline Worksheets. See Plaintiff's Exhibits #7 and #10 and Defendant's CT Page 14064-lm Exhibit #14. The court also has examined the worksheets submitted at the dissolution and at the hearing conducted by Judge Brunetti. In applying the appropriate Federal income tax withholding tables (2005 for single persons, weekly payroll), and those deductions from the defendant's gross weekly pay allowed by the guidelines, the defendant's presumptive child support obligation is $209 per week. Fifteen per cent of $209 is $31.35. Thus, the low-end would be $178, while the high-end is $240. Therefore, the current child support order of $250 per week, exceeds the high-end of the presumptive child support, per the guidelines, by a mere $10.
From the defendant's gross weekly income of $800, the court deducted the following: Federal withholding — $95; Social security — $50; Medicare — $12; and State withholding — $33; total deductions of $190, resulting in a net income of $610. Applying the Schedule of Basic Child Support Obligations, the result is $209 per week in child support.
D. Factual Analysis
At the time of the dissolution of the parties' marriage in the fall of 2002, the defendant was a self-employed electrical contractor, who owned several income-producing properties. He reported gross earrings of $1,058 per week net weekly earnings of $743. Although he reported gross rentals of $154 per week, or $662 per month, the evidence shows that the gross rentals from the Pearl Street properties were in excess of five times that amount, while his net income therefrom was in excess of $600 per week. The income generated by the income-producing properties alone at the time of the dissolution was sufficient to pay the alimony and child support orders and part of the van payment-this without contributing one dime from his electrical contracting profits! Despite the income reported on his Federal income tax returns, the evidence clearly demonstrates that, at the time of the dissolution, the defendant's income was more than sufficient to justify the periodic orders that he agreed to pay.
See Defendant's Exhibit #9 (2000 Form 1040), Defendant's Exhibit # 8 (2001 Form 1040), which were joint returns, and Defendant's Exhibit #13 (2002), a single return. In 2000, the parties reported. $23,535 in gross rentals and an $11,557 loss; Schedule C gross receipts of $30,225 were reported, with a net profit of $6431; the parties paid $909 in federal taxes. In 2001 they reported $24,235 in gross rentals and a net loss of $11,387; Schedule C receipts were $80,385, with a net profit of $12,107; they paid $1711 in Federal taxes. In 2002, the defendant reported gross rentals of $42,746 and net of $11,185; Schedule C receipts were $61,590, with a net of $24,704; the defendant paid $4206 in federal taxes.
There can be no doubt that the defendant is bitter over the loss of his planned subdivision. Ultimately, the plan called for an easement over the existing driveway, under which the utilities serving the marital home were installed; the plaintiff was unwilling to encumber the real property in such a manner, an encumbrance certainly not envisioned by the parties at the time the dissolution. The plaintiff testified that the defendant told her that the reason he sold the Pearl Street properties was that his girlfriend could no longer tolerate the tenants' calls and that she, therefore, urged the defendant to divest himself of those income-producing assets. Whether motivated by his anger at the plaintiff for her presumed lack of cooperation on the subdivision issue or by the protestations and demands of his girlfriend, the defendant's decision to sell the Pearl Street properties was ill-advised, as a major stream of substantial income was lost forever. The decision was not in his best interest, and most assuredly, not in the best interest of his two daughters and their caretaker. The defendant then, purportedly, used the proceeds of the sale to buy a lot and to construct a single-family CT Page 14064-ln dwelling thereon, borrowing $90,000 from his father in the process. The stated purpose was to reside in a dwelling, that would provide an appropriate environment for his daughters during his parenting time. He does not reside in that dwelling and does not visit with Jenna and Deanna. Moreover, his son and others reside in the dwelling rent-free. As earlier addressed, the numbers simply do not add up, which prompted a justifiable suspicion on the part of the plaintiff and by this court, that the defendant has secreted substantial liquid assets. The loss of the income-producing properties was the defendant's own doing, was ill motivated and cannot serve as a basis for modification of the alimony or the child support order.
An attorney's check for $106,919.70, dated June 12, 2003, referencing the sale of the Pearl Street properties, was deposited in an account held jointly by the defendant and his father, and deposited in the father's name. See Plaintiff's Exhibit #4.
As to the employment issue, although the evidence demonstrates that the loss of the income generated by the Pearl Street properties resulted from the defendant's poor judgment, this court finds that such is not the case as to the defendant's change in employment. This court finds that the defendant's current status as an employee was not prompted by any misconduct or poor judgment on his part, but by circumstances beyond his control, i.e., the loss of anticipated business from Heritage Builders, his principal business benefactor. His current employment, however, generates weekly income well below the defendant's demonstrated earning capacity. Moreover, this court believes that the defendant has not diligently pursued, at least, a part-time restart of his electrical contracting business, which would improve his income level.
This court also believes that the plaintiff's failure to pursue, at least, some part-time employment, perhaps out of her home, during school hours, impedes the family's financial health. This court is well aware of the enormous responsibility undertaken by the plaintiff in caring for Deanna, however, the child is in school six hours each weekday. Not only should the plaintiff pursue some part-time employment, but she should explore the availability of community resources that could assist in the care of her handicapped daughter, as well as possible, social security benefits.
Given the change in the defendant's earned income status, coupled with the plaintiff's lack of resolve to seek out some employment, this court finds that the defendant is entitled to some financial relief, under the current circumstances. No modification in the child support order is justified, as the current guideline recommended amount falls only $10 below a fifteen per cent deviation from the current order. In this court's view, under the circumstances of this case, such does not constitute a substantial deviation. The court will apply, based on the facts of this case, two of the deviation criteria provided in Sec. 46b-215a-3(b)(1) of the Child Support Guidelines, as the defendant has CT Page 14064-lo substantial assets and an earning capacity in excess of his current wages. As to the periodic alimony, however, the court finds that a slight downward modification is appropriate.
E. The Van Payments
In addition to a reduction in child support and alimony, the defendant seeks a termination or reduction in the van payment obligation. As noted, the van in question is specially equipped to serve the transportation needs of Deanna. First, as previously stated, the request for relief in defendant's motion does not mention the van. Despite that fact, however, the court finds that the plaintiff had sufficient notice on the issue and was adequately prepared to address the issue at the hearing. Connolly v. Connolly, 191 Conn. 468, 476 (1983). Many of the same considerations applicable to the alimony and support issue are equally applicable to this issue. The court will, therefore, entertain the defendant's request to modify the van obligation. Second, the plaintiff argues that said obligation cannot be modified, as the order was an integral part of a property settlement and is, therefore, not modifiable. Although the plaintiff cites Passamono v. Passamano, 228 Conn. 85 (1993), to support her argument, the facts in this case are significantly different. In Passamano, the plaintiff expressly waived any alimony, therefore, no provision for alimony was entered by the dissolution court. In the instant case, periodic alimony was ordered, and the separation agreement and judgment file specifically provided that the van payment would be considered, "additional alimony."
The above discussion, however, is purely academic, as the last thing this court will do in this case is to jeopardize Deanna's mode of transportation. The defendant's request to terminate or reduce his van obligation is, therefore, denied.
VII. CONTEMPT
Practice Book Sec. 25-26(a) provides:
(a) Upon an application for a modification of an award of alimony pendente lite, alimony or support of minor children, filed by a person who is then in arrears under the terms of such award, the judicial authority shall, upon hearing, ascertain whether such arrearage has accrued without sufficient excuse so as to constitute a contempt of court, and, in its discretion, may determine whether any modification of current alimony and support shall be ordered prior to CT Page 14064-lp the payment, in whole or in part as the judicial authority may order, of any arrearage found to exist.
Thus, as in this case, whenever the court receives a motion to modify alimony/support by one who is in arrears, the court is mandated to determine whether the payor is in contempt of the orders, relative to which the modification is sought. The court then has the discretion to order the full or partial payment of the arrearage, prior to granting any modification.
Although the inability to pay an order of alimony or child support, without the fault of the payor, is a proper defense to an allegation of contempt, the burden of proof is on the payor, i.e., the defendant in this case.
An order of the court must be obeyed until it has been modified or successfully challenged. The record is clear that the defendant neither modified nor successfully challenged the court order regarding alimony payments. Noncompliance with an order of the court alone does not necessarily dictate that a finding of contempt be entered.
For example, the inability to comply is a good defense to a claim of contempt. The contemnor must establish that he cannot comply, or was unable to do so. It is within the sound discretion of the court to deny a claim of contempt when there is an adequate factual basis to explain the failure.
Citations omitted. Bunche v. Bunche, 36 Conn.App. 322, 325-26 (1994).
In this case, the defendant has failed to demonstrate a sufficient factual basis for his unilateral reduction in the alimony and child support weekly payment (from $550 to $200), and his cessation of the van payments, without first obtaining leave of court. His ill-motivated, poorly conceived, divestiture of his income-producing properties eliminated a resource that would support the payment of a major portion of those weekly orders. By investing the net receipts from the sale of said properties and borrowing funds from his father in order to construct a house that he does not occupy and from which he receives no rent from those who do occupy, his poor judgment continues to prevail. He has secreted assets or has assets that belong to him being held by others. In any event, if he does not choose to utilize the New Harwinton Road property as his residence, then he should sell it! His failure to abide by CT Page 14064-lq the court orders in the past, as evidenced by previous contempt motions, resulting in court-ordered lump sum arrearage payments, does not instill a confidence that he will consistently pay in the future, without an appropriate wage withholding in place. The evidence clearly supports a finding that the defendant was aware of his alimony, support and van obligations; he agreed to the entry of all three court orders. The evidence clearly establishes that he has failed to comply with said orders and that his failure to do so was willful. He is, therefore, in contempt of said orders. The evidence also clearly demonstrates that he has sufficient assets from which the outstanding arrearage can and should be fully paid.
As to the plaintiff's request for attorneys fees, pursuant to General Statutes Sec. 46b-87, the court has the authority to enter such an order against a contemnor.
When any person is found in contempt of an order of the Superior Court entered under section 46b-60 to 46b-62, inclusive, 46b-81 to CT Page 14064-lu 46b-83, inclusive, or 46b-86, the court may award to the petitioner a reasonable attorneys fee and the fees of the officer serving the contempt citation, such sums to be paid by the person found in contempt, provided if any such person is found not to be in contempt of such order, the court may award a reasonable attorneys fee to such person.
Moreover, because the award of attorneys fees pursuant to § 46b-87 is punitive, rather than compensatory, the court properly may consider the defendant's behavior as an additional factor in determining both the necessity of awarding attorneys fees and the proper amount of any award.
Esposito v. Esposito, 71 Conn.App. 744, 750 (2002).
VIII. CONCLUSION AND ORDERS
Based on the foregoing, the defendant's motion to modify (#150), is denied as to the child support and is granted as to the alimony. The defendant's request for relief from the van payment obligation is denied. The plaintiff's motion for contempt (# 151) is granted; the defendant is found in willful contempt of the periodic orders.
It is, therefore, ORDERED that:
(1.) The dissolution alimony order of $300 per week is modified downward by $75 to $225 per week, retroactive to the date on which the motion to modify was filed, March 1, 2005. The child support and van obligations will not be modified.
On March 14, 2005, the parties stipulated before this court that any modification of the alimony or child support would be retroactive to the date of the filing of the motion to modify.
(2.) The defendant is found in contempt for his willful failure to pay the court-ordered child support, alimony and van obligations.
(3.) The court will find an arrearage due to the plaintiff from the defendant in the amount of $12,116, as of September 23, 2005, subject to CT Page 14064-lr credits based on the retroactivity of the alimony order.
(4.) The defendant is ordered to pay a lump sum of $9,000, on or before November 28, 2005, to which date this case is continued for the purpose of monitoring the payment and of ordering a payment schedule to discharge any arrearages due to the plaintiff at that time.
It is noteworthy that, during final argument, defendant's attorney offered, on the defendant's behalf, to pay the balance of the van loan in full. According to the defendant's financial affidavit, dated September 21, 2005, the balance of said loan was $9,700.
(5.) The child support order in the amount of $250 per week should be secured by an immediate wage withholding; the defendant is ordered to make all court-ordered periodic payments promptly and consistently, whether the withholding order is in place or not. The parties shall cooperate to execute all documents necessary to implement the wage withholding.
(6.) Pursuant to Sec. 46b-87, the plaintiff is awarded attorneys fees in the amount of $3,500, which shall be paid by the defendant to the plaintiff's attorney as follows: $1,500 on or before January 1, 2006; $1,000 on or before March 1, 2006; and $1,000 on or before May 1, 2006.
(7.) The court will not order the defendant's incarceration, as the purpose of a civil contempt action should be to obtain the monies due to the plaintiff, not to punish the defendant for his transgressions, however, the defendant is advised that his failure to comply with the orders entered herein will place him at serious risk of confinement. Papa v. New Haven Federation of Teachers, 186 Conn. 725, 738 (1982).